J-S14045-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL RAY JAMES : : Appellant : No. 1316 WDA 2022
Appeal from the PCRA Order Entered October 19, 2022 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000939-2013
BEFORE: PANELLA, P.J., BENDER, P.J.E., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: May 18, 2023
Michael Ray James (James) appeals from the October 19, 2022 order of
the Court of Common Pleas of Erie County (PCRA court) dismissing as untimely
his petition pursuant to the Post-Conviction Relief Act (PCRA).1 We affirm.
Only a brief procedural history is necessary to our disposition. Following
a jury trial, James was convicted of conspiracy to commit possession with
intent to deliver (PWID) a controlled substance, endangering the welfare of
children, two counts of PWID, possession of drug paraphernalia and two
counts of possession of a controlled substance.2 He was sentenced to an
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541 et seq.
2 18 Pa.C.S. §§ 903 & 4304(a)(1); 35 P.S. §§ 780-113(a)(30), (32) & (16). J-S14045-23
aggregate of 9 years and 9 months to 19.5 years of incarceration and this
Court affirmed the judgment of sentence. Commonwealth v. James, 318
WDA 2014, at *10 (Pa. Super. Nov. 10, 2014) (unpublished memorandum).
James filed his first PCRA petition in 2015 raising several claims of
ineffective assistance of counsel. The PCRA court dismissed the petition
without a hearing and we affirmed. Commonwealth v. James, 4 WDA 2016,
at *9 (Pa. Super. Oct. 11, 2016) (unpublished memorandum). He filed a
second petition in 2021 that challenged the legality of his sentence pursuant
to Alleyne v. United States, 570 U.S. 99 (2013).3 The PCRA court dismissed
the petition as untimely and James did not seek further review.
James then filed the instant petition on July 14, 2022. He again
contended that his sentence was illegal under Alleyne, but argued that his
petition was timely under Commonwealth v. Bradley, 261 A.3d 381 (Pa.
2021).4 He argued that his first PCRA counsel was ineffective for failing to
pursue his Alleyne claim, and that the instant petition was his first
3 James was sentenced to mandatory minimum terms of imprisonment based on the weight of the heroin and cocaine found in his possession. See 18 Pa.C.S. § 7508. We note that the verdict slips in the certified record include handwritten notations stating “if guilty, the weight of the cocaine [and heroin] proven beyond a reasonable doubt was” with a blank line, which the jury filled in as 128.9 grams and 53.6 grams, respectively. See Verdict Slips, 11/13/13, PWID—Cocaine & PWID—Heroin.
4 In Bradley, our Supreme Court held that a PCRA petitioner may raise ineffectiveness of PCRA counsel “at the first opportunity to do so, even when on appeal.” Commonwealth v. Bradley, 261 A.3d 381, 401 (Pa. 2021).
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opportunity to address that ineffectiveness pursuant to Bradley. He did not
cite any specific exception to the PCRA’s jurisdictional time-bar.
The PCRA court issued a notice of its intent to dismiss the petition
without a hearing. It concluded that the petition was untimely because
Bradley did not recognize a new constitutional right. It further held that the
Alleyne claim had been previously litigated in James’ second PCRA petition.
James filed a response arguing that the procedure for challenging PCRA
counsel ineffectiveness outlined in Bradley constituted a newly-discovered
fact that was not previously discoverable with due diligence. He further
contended that he was prevented from raising his Alleyne claim through
government interference, as the PCRA court had ruled in response to his first
petition that the claim was not cognizable under the PCRA. The PCRA court
dismissed the petition and James timely appealed. He and the PCRA court
have complied with Pa. R.A.P. 1925.
On appeal, James argues that the PCRA court erred in dismissing his
petition as untimely under the exceptions to the jurisdictional time-bar for
newly-discovered facts and government interference.5 “A PCRA petition,
including a second and subsequent petition, shall be filed within one year of
5 Whether a PCRA petition is timely filed is a question of law over which our standard of review is de novo and our scope of review is plenary. Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citations omitted).
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the date the underlying judgment becomes final.” Commonwealth v.
Graves, 197 A.3d 1182, 1185 (Pa. Super. 2018) (citation omitted). “[A]
judgment becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review.” 42 Pa.C.S. § 9545(b)(3).
James’ judgment of sentence became final in 2014 when proceedings
on his direct appeal concluded. The instant petition, his third, was filed in
2022. Accordingly, it is facially untimely and he must plead and prove one of
the three exceptions to the PCRA’s jurisdictional time-bar: (1) government
interference with the presentation of the claim; (2) newly-discovered facts; or
(3) a newly-recognized constitutional right. 42 Pa.C.S. § 9545(b)(1)(i)-(iii).
In addition, a petitioner invoking a time-bar exception must file the petition
raising the claimed exception within one year of the date the claim could have
been presented. 42 Pa.C.S.A. § 9545(b)(2).
First, James asserts that his petition is timely under the exception for
newly-discovered facts because he learned only after Bradley that he could
challenge the effectiveness of his first PCRA counsel. 42 Pa.C.S.
§ 9545(b)(1)(ii). To establish timeliness pursuant to the newly-discovered
facts exception, “the petitioner must establish only that (1) the facts upon
which the claim was predicated were unknown and (2) they could not have
been ascertained by the exercise of due diligence.” Commonwealth v. Cox,
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146 A.3d 221, 227 (Pa. 2016). However, this Court has repeatedly held that
developments in case law do not constitute new “facts” for the purposes of
the jurisdictional time-bar. Commonwealth v. Brandon, 51 A.3d 231, 235
(Pa. Super. 2012) (quoting Commonwealth v. Watts, 23 A.3d 980, 987 (Pa.
2011) (“[S]ubsequent decisional law does not amount to a new ‘fact’ under
section 9545(b)(1)(ii) of the PCRA.”). Accordingly, James cannot rely on
Bradley as a newly-discovered fact to overcome the time-bar.
Next, James argues that he was prevented from raising his Alleyne
claim earlier due to the PCRA court’s incorrect statement of law in his initial
PCRA proceedings. To establish the time-bar exception for government
interference, a petitioner must plead and prove “the failure to raise the claim
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J-S14045-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL RAY JAMES : : Appellant : No. 1316 WDA 2022
Appeal from the PCRA Order Entered October 19, 2022 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000939-2013
BEFORE: PANELLA, P.J., BENDER, P.J.E., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: May 18, 2023
Michael Ray James (James) appeals from the October 19, 2022 order of
the Court of Common Pleas of Erie County (PCRA court) dismissing as untimely
his petition pursuant to the Post-Conviction Relief Act (PCRA).1 We affirm.
Only a brief procedural history is necessary to our disposition. Following
a jury trial, James was convicted of conspiracy to commit possession with
intent to deliver (PWID) a controlled substance, endangering the welfare of
children, two counts of PWID, possession of drug paraphernalia and two
counts of possession of a controlled substance.2 He was sentenced to an
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541 et seq.
2 18 Pa.C.S. §§ 903 & 4304(a)(1); 35 P.S. §§ 780-113(a)(30), (32) & (16). J-S14045-23
aggregate of 9 years and 9 months to 19.5 years of incarceration and this
Court affirmed the judgment of sentence. Commonwealth v. James, 318
WDA 2014, at *10 (Pa. Super. Nov. 10, 2014) (unpublished memorandum).
James filed his first PCRA petition in 2015 raising several claims of
ineffective assistance of counsel. The PCRA court dismissed the petition
without a hearing and we affirmed. Commonwealth v. James, 4 WDA 2016,
at *9 (Pa. Super. Oct. 11, 2016) (unpublished memorandum). He filed a
second petition in 2021 that challenged the legality of his sentence pursuant
to Alleyne v. United States, 570 U.S. 99 (2013).3 The PCRA court dismissed
the petition as untimely and James did not seek further review.
James then filed the instant petition on July 14, 2022. He again
contended that his sentence was illegal under Alleyne, but argued that his
petition was timely under Commonwealth v. Bradley, 261 A.3d 381 (Pa.
2021).4 He argued that his first PCRA counsel was ineffective for failing to
pursue his Alleyne claim, and that the instant petition was his first
3 James was sentenced to mandatory minimum terms of imprisonment based on the weight of the heroin and cocaine found in his possession. See 18 Pa.C.S. § 7508. We note that the verdict slips in the certified record include handwritten notations stating “if guilty, the weight of the cocaine [and heroin] proven beyond a reasonable doubt was” with a blank line, which the jury filled in as 128.9 grams and 53.6 grams, respectively. See Verdict Slips, 11/13/13, PWID—Cocaine & PWID—Heroin.
4 In Bradley, our Supreme Court held that a PCRA petitioner may raise ineffectiveness of PCRA counsel “at the first opportunity to do so, even when on appeal.” Commonwealth v. Bradley, 261 A.3d 381, 401 (Pa. 2021).
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opportunity to address that ineffectiveness pursuant to Bradley. He did not
cite any specific exception to the PCRA’s jurisdictional time-bar.
The PCRA court issued a notice of its intent to dismiss the petition
without a hearing. It concluded that the petition was untimely because
Bradley did not recognize a new constitutional right. It further held that the
Alleyne claim had been previously litigated in James’ second PCRA petition.
James filed a response arguing that the procedure for challenging PCRA
counsel ineffectiveness outlined in Bradley constituted a newly-discovered
fact that was not previously discoverable with due diligence. He further
contended that he was prevented from raising his Alleyne claim through
government interference, as the PCRA court had ruled in response to his first
petition that the claim was not cognizable under the PCRA. The PCRA court
dismissed the petition and James timely appealed. He and the PCRA court
have complied with Pa. R.A.P. 1925.
On appeal, James argues that the PCRA court erred in dismissing his
petition as untimely under the exceptions to the jurisdictional time-bar for
newly-discovered facts and government interference.5 “A PCRA petition,
including a second and subsequent petition, shall be filed within one year of
5 Whether a PCRA petition is timely filed is a question of law over which our standard of review is de novo and our scope of review is plenary. Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citations omitted).
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the date the underlying judgment becomes final.” Commonwealth v.
Graves, 197 A.3d 1182, 1185 (Pa. Super. 2018) (citation omitted). “[A]
judgment becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review.” 42 Pa.C.S. § 9545(b)(3).
James’ judgment of sentence became final in 2014 when proceedings
on his direct appeal concluded. The instant petition, his third, was filed in
2022. Accordingly, it is facially untimely and he must plead and prove one of
the three exceptions to the PCRA’s jurisdictional time-bar: (1) government
interference with the presentation of the claim; (2) newly-discovered facts; or
(3) a newly-recognized constitutional right. 42 Pa.C.S. § 9545(b)(1)(i)-(iii).
In addition, a petitioner invoking a time-bar exception must file the petition
raising the claimed exception within one year of the date the claim could have
been presented. 42 Pa.C.S.A. § 9545(b)(2).
First, James asserts that his petition is timely under the exception for
newly-discovered facts because he learned only after Bradley that he could
challenge the effectiveness of his first PCRA counsel. 42 Pa.C.S.
§ 9545(b)(1)(ii). To establish timeliness pursuant to the newly-discovered
facts exception, “the petitioner must establish only that (1) the facts upon
which the claim was predicated were unknown and (2) they could not have
been ascertained by the exercise of due diligence.” Commonwealth v. Cox,
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146 A.3d 221, 227 (Pa. 2016). However, this Court has repeatedly held that
developments in case law do not constitute new “facts” for the purposes of
the jurisdictional time-bar. Commonwealth v. Brandon, 51 A.3d 231, 235
(Pa. Super. 2012) (quoting Commonwealth v. Watts, 23 A.3d 980, 987 (Pa.
2011) (“[S]ubsequent decisional law does not amount to a new ‘fact’ under
section 9545(b)(1)(ii) of the PCRA.”). Accordingly, James cannot rely on
Bradley as a newly-discovered fact to overcome the time-bar.
Next, James argues that he was prevented from raising his Alleyne
claim earlier due to the PCRA court’s incorrect statement of law in his initial
PCRA proceedings. To establish the time-bar exception for government
interference, a petitioner must plead and prove “the failure to raise the claim
previously was the result of interference by government officials with the
presentation of the claim in violation of the Constitution or laws of this
Commonwealth or the Constitution or laws of the United States.” 42 Pa.C.S.
§ 9545(b)(1)(i). Notably, a petition invoking this exception must now be filed
within one year of the date the claim could have been filed, but the previous
version of the statute granted petitioners only 60 days to bring the claim.6 42
Pa.C.S. § 9545(b)(2); see also Commonwealth v. Rizvi, 166 A.3d 344 (Pa.
6 As of December 24, 2018, Section 9545(b)(2) states that any PCRA petition invoking a time-bar exception must be filed within one year of the date the claim could have first been presented. See Act 2018, Oct. 24, P.L. 894, No. 146, § 2, effective Dec. 24, 2018. The amendment applied to claims arising on or after December 24, 2017.
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Super. 2017) (holding that petitioner did not satisfy timeliness requirement of
Section 9545(b)(2) in a government interference claim when he failed to
explain why he waited approximately four years to seek relief).
James refers to the PCRA court’s notice of intent to dismiss without a
hearing issued in response to his first petition: “The claims Petitioner raised
in the pro se PCRA were largely included in the PCRA filed by counsel.
Petitioner also raised an Alleyne claim, which is not cognizable under the
PCRA. See Commonwealth v. Riggle, [119 A.3d 1058] ([Pa. Super.] 2015).
It will therefore not be addressed.” Notice of Intent to Dismiss PCRA Pursuant
to Pa. R. Crim. P. 907, 10/8/15, at 3 n.2. In Riggle, this Court held only that
Alleyne enunciated a procedural rule that did not apply retroactively to cases
on collateral review in which the judgment of sentence became final before
Alleyne was decided. Riggle, supra, at 1067. Here, however, James
proceeded to trial and sentencing after Alleyne was decided. A petitioner
who received an illegal sentence under Alleyne may seek relief under the
PCRA if his petition is timely and the judgment of sentence was not final when
Alleyne was decided. Commonwealth v. DiMatteo, 177 A.3d 182, 191 (Pa.
2018). James contends that the PCRA court’s error of law resulted in his
counsel waiving the Alleyne claim even though he repeatedly asked counsel
to amend the petition to include it.
No relief is due. As James acknowledges, the PCRA court’s notice of
intent to dismiss his first PCRA petition was issued in October 2015, and he
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was aware at the time that he filed the petition that he wanted to pursue an
illegal sentencing claim under Alleyne. He provides no explanation for why
he waited to raise this claim until July 2022, nearly seven years later, when
he was required to present his claim within 60 days of the erroneous PCRA
court ruling based on the prior version of Section 9545(b)(2).7 Because he
has failed to plead and prove this element of the exception, the PCRA court
did not err in dismissing the instant petition as untimely.8
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/18/2023
7 Moreover, James first presented his Alleyne claim in his second petition, which was also dismissed as untimely when he failed to plead and prove an exception to the time-bar. See Notice of Intent to Dismiss PCRA without a Hearing, 11/18/21, at 3-5 (pagination supplied); Final Order, 12/22/21. The instant petition merely attempts to present the same claim reframed under timeliness exceptions he could have pled previously.
8 In a final, one-sentence argument, James urges this Court to review his petition sua sponte for timeliness. James’ Brief at 17. “This Court will not act as counsel and will not develop arguments on behalf of an appellant.” Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010).
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